R. v. Lamouche (K.W.) et al., (2000) 267 A.R. 347 (QB)

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 27, 2000
• Citations: (2000), 267 A.R. 347 (QB);2000 ABQB 461

R. v. Lamouche (K.W.) (2000), 267 A.R. 347 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JL.050

Her Majesty The Queen (respondent) v. Kenneth Wilson Lamouche, Shawn Lawrence Lamouche and Lawrence Francis Prince (appellants)

(9903 0011S4; 2000 ABQB 461)

Indexed As: R. v. Lamouche (K.W.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

July 6, 2000.

Summary:

Kenneth and Shawn Lamouche were con­victed of several counts of, inter alia, traf­ficking in wildlife and hunting for the pur­poses of trafficking in wildlife contrary to the Wildlife Act.

The Alberta Provincial Court, in decision reported 236 A.R. 69, sentenced the accused to a total sentence of 12 months and nine months' imprisonment respectively. They appealed the sentences.

The Alberta Court of Queen's Bench allowed Kenneth's appeal in part and directed that the parties appear before it to speak to sentence. The court dismissed Shawn's appeal.

Civil Rights - Topic 3131.1

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to benefit of lesser punishment - [See third Fish and Game - Topic 2706.1 ].

Fish and Game - Topic 2706.1

Offences - Sentence - Fines and penalties -Trafficking in wildlife (incl. hunting and possession for the purpose of) - Kenneth Lamouche was convicted of several counts of, inter alia, trafficking in wildlife and hunting for the purposes of trafficking in wildlife contrary to the Wildlife Act and sentenced to 12 months' imprisonment - The trial judge appeared to determine that for trafficking in wildlife, imprisonment was the sanction of first resort and alterna­tively, less severe penalties were to be imposed only if there was a reason justify­ing deviation from the imprisonment start­ing position - Lamouche appealed - The Alberta Court of Queen's Bench agreed with Lamouche that this determination constituted an error in law - See para­graphs 11 to 16.

Fish and Game - Topic 2706.1

Offences - Sentence - Fines and penalties -Trafficking in wildlife (incl. hunting and possession for the purpose of) - Kenneth Lamouche was convicted of, inter alia, trafficking in wildlife and hunting for the purposes of trafficking in wildlife and sentenced to 12 months' imprisonment - He appealed, arguing that if no other first time offender had ever been sent to gaol for a Wildlife Act violation, he could not be sent to gaol - The Alberta Court of Queen's Bench rejected the argument - It clearly was within the trial judge's discre­tion to determine that the last resort, a term of imprisonment, was a fit sentence - There should be no interference with such a determination on the basis of disparity with sentence imposed in other cases, unless it was very clear that the disparity was not justified - See paragraphs 17 to 19.

Fish and Game - Topic 2706.1

Offences - Sentence - Fines and penalties -Trafficking in wildlife (incl. hunting and possession for the purpose of) - The accused were convicted of trafficking in wildlife and hunting for the purposes of trafficking in wildlife contrary to the Wild­life Act - The sentencing judge imposed directions under s. 93.4 - The offences occurred before s. 93.4 came into force - The Alberta Court of Queen's Bench held that the purpose of the directions was not to punish but to protect the public in the management of the wildlife resource - Therefore, neither the rule against retro­spective operation of a statute nor s. 11(i) of the Charter (right to benefit of lesser punish­ment) were offended - See para­graphs 20 to 28.

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - [See third Fish and Game - Topic 2706.1 ].

Statutes - Topic 6705

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Presumption against rebutted - [See third Fish and Game - Topic 2706.1 ].

Statutes - Topic 6713

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Public protection - [See third Fish and Game - Topic 2706.1 ].

Statutes - Topic 6714

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - Retrospective or retroactive operation - Criminal legislation - [See third Fish and Game - Topic 2706.1 ].

Cases Noticed:

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 18].

Solicitor's Clerk, Re A, [1957] 3 All E.R. 617, refd to. [para. 25].

Barry and Brosseau v. Alberta Securities Commission (1986), 67 A.R. 222 (C.A.), refd to. [para. 25].

Bulmer v. Alberta (Solicitor General) and Registrar of Motor Vehicles (Alta.) (1987), 76 A.R. 194 (Q.B.), refd to. [para. 26].

R. v. Pelletier (1989), 52 C.C.C.(3d) 340 (Que. C.A.), refd to. [para. 33].

R. v. Berry (A.S.) (1997), 196 A.R. 398; 141 W.A.C. 398 (C.A.), refd to. [para. 33].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(i) [para. 22].

Criminal Code, R.S.C. 1985, c. C-46, sect. 718.2(b) [para. 18]; sect. 718.2(d), sect. 718.2(e) [para. 13].

Wildlife Act, S.A. 1984, c. W-9.1, sect. 93.4 [para. 20].

Counsel:

Francis McMenemy, for Kenneth Wilson Lamouche;

Gordon W. Collins, for Shawn Lawrence Lamouche;

Kevin Thomas Mott, for Her Majesty the Queen.

These appeals were heard on June 27, 2000, before Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 6, 2000.